A BILL to amend and reenact §22A-1-22 of the Code of West Virginia,
1931, as amended, relating to the strengthening of protections
for whistleblowers of unsafe working conditions in mine;
directing the Office of Miners’ Health, Safety and Training to
conduct a study and report to the Legislature.

Be it enacted by the Legislature of West Virginia:

That §22A-1-22 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:

(a) No person shall discharge or in any other way discriminate
against or cause to be discharged or discriminated against any
miner or any authorized representative of miners by reason of the
fact that the person believes or knows that such miner or
representative (1) has notified the director, his or her
authorized representative, or an operator, directly or indirectly,
of any alleged violation or danger, (2) has filed, instituted or
caused to be filed or instituted any proceeding under this law, (3)
has testified or is about to testify in any proceeding resulting
from the administration or enforcement of the provisions of this
law. No miner or representative shall be discharged or in any
other way discriminated against or caused to be discriminated
against because a miner or representative has done (1), (2) or (3)
above.

(b) Any miner or a representative of miners who believes that
he or she has been discharged or otherwise discriminated against,
or any miner who has not been compensated by an operator for lost
time due to the posting of a withdrawal order, may, within thirty
days after such violation occurs, apply to the appeals board for a
review of such alleged discharge, discrimination or failure to
compensate. A copy of the application shall be sent to such person
who shall be the respondent. Upon receipt of such application, the
appeals board shall cause such investigation to be made as it deems
appropriate. Such investigation shall provide an opportunity for
a public hearing at the request of any party to enable the parties
to present information relating to such violation. The parties
shall be given written notice of the time and place of the hearing
at least five days prior to the hearing. Mailing of the notice of
hearing to the charged party at the party's last address of record
as reflected in the records of the office is adequate notice to the
charged party. Such notice shall be by certified mail, return
receipt requested. Any such hearing shall be of record. Upon
receiving the report of such investigation, the board shall make
findings of fact. If it finds that such violation did occur, it
shall issue a decision within forty-five days, incorporating an
order therein, requiring the person committing such violation to
take such affirmative action to abate the violation as the board
deems appropriate, including, but not limited to, the rehiring or
reinstatement of the miner or representative of miners to his or
her former position with back pay, and also pay compensation for
the idle time as a result of a withdrawal order. If it finds that
there was no such violation, it shall issue an order denying the
application. Such order shall incorporate the board's finding
therein. If the proceedings under this section relative to
discharge are not completed within forty-five days of the date of
discharge due to delay caused by the operator, the miner shall be
automatically reinstated until the final determination. If such
proceedings are not completed within forty-five days of the date of
discharge due to delay caused by the board, then the board may, at
its option, reinstate the miner until the final determination. If
such proceedings are not completed within forty-five days of the
date of discharge due to delay caused by the miner the board shall
not reinstate the miner until the final determination.

(c) Whenever an order is issued under this section, at the
request of the applicant, a sum equal to the aggregate amount of
all costs and expenses including the attorney's fees as determined
by the board to have been reasonably incurred by the applicant for,
or in connection with, the institution and prosecution of such
proceedings, shall be assessed against the person committing such
violation.

(c) The Office of Miners’ Health, Safety and Training is
directed to conduct a study of the need to expand protections for
whistleblowers and other miners who refuse to work in situations
they perceive as unsafe in underground mines. The office shall
study the benefits and appropriateness of requiring additional
protections that will encourage miners to withdrawal from and
report unsafe working conditions. The Office shall investigate
whether any pattern of retribution exists against these persons,
and if so to make recommendations to the to the Legislature
regarding implementing additional protections. The Office shall
report to the Legislature’s Joint Committee on Government and
Finance by December 31, 2011 with recommendations regarding whether
it is appropriate to implement any additional protections.